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Category Archives: Litigation

Singer and song writer Drake has been sued for copyright infringement by a jewelery designer over an owl motif necklace. However, the singer has been using an owl logo very similar to that exhibited by the necklace and is claiming the necklace design is based on an ancient Egyptian hieroglyphic and therefore the design is in the public domain. The jeweler registered the design with the U.S. Copyright Office and it will be interesting to see how this plays out. If a court finds that the design has sufficient orginality then the court may award damages for infringement. The owl is an ancient Western symbol of wisdom often associated the the Greek Goddess Athena and the city of Athens.

How can we forget songs like Purple Rain – you probably sang it in the shower this morning. But lately Prince has been kind of a jerk by filing a copyright infringement lawsuit against 22 individuals (fan websites) and requesting damages of one million dollars against each of them for posting links to his music on the Internet. Now before you scramble to get that illegally downloaded copy of Little Red Corvette(See note below) off your phone – hold on there – the pint size pop star inexplicably dropped the lawsuit without prejudice – meaning he could file it again if he wants to make his fan base even angrier.

One distraught fan had this to say:

“Yes, bootlegging is wrong, but … who is next? Dude will even go after regular ass fans … really sad. Prince will be remembered for making some of the most beautiful music ever created and for hating his fans.”

He may have decided to drop the suit after his lawyers realized that one does not infringe copyright by linking to songs or other materials on the Internet. A link does not create a copy of the material it just takes you to it – the link is like the road that takes you to the bank – you could drive to a bank and rob it – but it wasn’t the road’s fault you robbed the bank. To date no decision in the United States has found that linking would constitute an infringement of copyright – in fact just the opposite has been found. Only the Dutch Courts have found linking to constitute a copyright infringement. And this is what we think of that decision. Now some decisions have held that an individual may be liable for contributory infringement if they post links to material that is clearly a “bootleged” or pirated – which is probably the case here but this is still a gray area of the law.

The lesson to remember is linking in 99% of cases is fine – probably not a good idea to link to something like this shaky video of the musical Wicked.

Note: Yes, I had to link you to a cover version of Little Red Corvette because Prince has done such a good job of keeping his content off the Web – way to go Prince now you got everyone listening to one of your most famous songs performed by Sarah Bettens – a Belgian for crying out loud. Also, you will need something called a mechanical license if you intend to cover one of Prince’s songs yourself.

The Hotfile Locker service, alleged to have been one of the 100 most trafficked sites on the Internet, has been ordered to pay $80 million in fines and damages to an assortment of Hollywood Studios. Read more here at CNET.

Oral arguments were heard by the 11th Circuit Court of Appeals on November 20th – with both sides getting pelted with questions they didn’t expect – Plaintiff’s lawyers were told to save the claptrap about how civic minded their clients were and get to the point (I see that as a good sign). Kevin Smith of Duke University thought the day went poorly for GSU especially with respect to the Appeals Court seeming to be skeptical of the 10% bright line that Judge Evans seemed to establish in the case – this was of concern to me from the start as Fair Use has always been context based and flexible – taking away that flexibility (and ability to argue the facts of the situation) would be a terrible result. It appear the Appeals Court may remand for more fact finding – I certainly hope we get some clarification on the 10% standard. Read more here from Smith’s analysis here and watch the post argument panel video of attorneys that gathered at GSU after the arguments here.

Rap Genius and a raft of other lyric sites have been targeted with take down notices from the NMP and no doubt just the beginning of protracted litigation. Rap Genius received significant investment to the tune of $15 million last year. Read more from the 1709 Blog.

Judge Denny Chin yesterday dismissed the Authors Guild copyright infringement case against Google yesterdays after some eight years of protracted litigation. The opinion had the feeling of an obituary – it was chronological, straightforward, perfunctory but listed no place to send flowers to mourn a dying copyright era. Of course, the publishers vowed to appeal but that also rings hollow after eight years, an eternity in our hyper-speed tech world, with many cheering the victory as a fait accompli. Read more herefrom the New York Times.

In a piece from Ryan Voght at Slate, Voght argues that the recent recreation in full detail of the original Mario Brothers game should be taken down immediately despite the fact that it is wildly popular and the fact that it has been 28 years since the game was first created. I know those two fact have no legal validity in an argument on copyright but in the real world of entertainment business they are everything as HBO might tell you with its show Game of Thrones being the most pirated show in television history. I completely disagree with Voght from both a business perspective and philsophical perspective – everything we see points to allowing your copyrighted material to be used freely (especially after 28 damn years) – it not only allows material to be used in creative new ways but as we have seen time and time again it benefits the original creator. On this Friday of Open Access Week let’s hope that the cease and desist letters cease and desist for at least one brief moment.